Avoiding Common Errors in an Application for a Certificate of Appointment of Estate Trustee With a Will

October 9, 2019 Suzana Popovic-Montag Estate & Trust, Estate Litigation, Estate Planning, Trustees, Uncategorized, Wills Tags: 0 Comments

Commencing an Application for a Certificate of Appointment of Estate Trustee With a Will is the first step in having a court formally declare a will as valid. This process was formerly known in Ontario as “probate”.

While these Certificates are not mandatory, some banks and financial institutions may require an Estate Trustee to obtain a Certificate in order to deal with estate assets. Aside from this, a Certificate is usually required in instances where:

  • the estate is large;
  • the assets cannot be easily transferred; and
  • real property forms part of the estate.

Avoiding Common Errors

Although the Application for a Certificate of Appointment of Estate Trustee With a Will is fairly short in length and seems straightforward, it is rare for these Applications to be approved upon their first submission. In the majority of cases, they are returned for corrections.

In order to assist applicants in completing their forms, the Ministry of the Attorney General released the following guidelines that highlight some common errors in these Applications:

  1. An Affidavit of Execution of Will or Codicil (Formed 74.8) signed by one of the witnesses to the will must be filed together with the original will, which will be marked as “Exhibit A” to the affidavit.
  • If there is no affidavit of execution and both witnesses cannot be found or have died, an affidavit attesting to the signature of the testator  must be filed. Ideally, the affidavit should be made by someone who is familiar with the testator’s signature.

 

  1. On Form 74.4 “Application for a Certificate of Appointment of Estate Trustee With a Will (Individual Applicant)”, the question under section 5 regarding an election of the Family Law Act should only be answered if the applicant is the spouse of the deceased.

 

  1. If the will states that someone other than the applicant has the right to apply for the Certificate of Appointment of Estate Trustee (or succeeding estate trustee), that person must give up their right by completing Form 74.11 “Renunciation of Right to a Certificate of Appointment of Estate Trustee (or Succeeding Estate Trustee) With a Will.”
  • This must be indicated on the Application (Form 74.4) and on Form 74.13 “Certificate of Appointment of Estate Trustee With a Will.”

 

4. If the applicant is not named as Estate Trustee in the will, they must obtain consent to their appointment from the beneficiaries who make up a majority share of the assets of the estate.

 

5. If an Estate Trustee who is named in the will or codicil is not the applicant due to death or renunciation, this should be indicated on the Application (Form 74.4) and on Form 74.13.

 

  1. If a will and/or codicil refers to a memorandum, the memorandum must be filed with the court.
  • If the memorandum cannot be found, an affidavit indicating this must be filed, along with the efforts made to locate it.

 

  1. All beneficiaries named in the will must be served with Form 74.7 “Notice of an Application for a Certificate of Appointment of Estate Trustee With a Will.”
  • If a beneficiary has not been served, an explanation must be given in Form 74.6 “Affidavit of Service of Notice” as to why.
  • Form 74.7 must be marked as “Exhibit A” to Form 74.6 “Affidavit of Service of Notice.”

 

  1. The original will should be marked as “Exhibit A” to the affidavit in the Application (Form 74.4).

 

  1. If Form 74.8 “Affidavit of Execution of Will or Codicil” is not submitted, an affidavit must be filed with the Application that explains this and sets out the efforts made to find the people who witnessed the testator sign their will.

 

  1. On Form 74.13 “Certificate of Appointment of Estate Trustee With a Will”, the address of the court should be typed under the Registrar’s signature line.
  • The date should not be filled in on this Form;
  • A plain, unmarked copy of the will should be filed; and
  • The court will impress a seal upon the Certificate of Appointment and the copy of the will attached.

To read the full article from the Ministry of the Attorney General about how to avoid common errors in applying for a Certificate of Appointment of Estate Trustee, visit this link.

 

Thanks for reading!

Suzana Popovic-Montag and Celine Dookie

 

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